Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Jacob Moir v. Sir Alexander Maxwell of Monreith
Date: 19 Jane 1712
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Moir against Maxwell. William Houston of Cultreoch having no male issue, but four daughters; and the lands lying convenient for Sir William and Alexander Maxwells of Monreith, they enter in a transaction with these four heirs-portioners, to purchase the lands from them. But, in regard that, by their serving heirs, they exposed themselves to the debts, which were considerable, he gave them a bond of relief to free them of the debts. After they are served and infeft, Andrew Houston of Calderhall instructs that these lands of Cultreoch were tailyied to the heir-male, which he was; and so evicted the lands both from the daughters, as heirs of line, and from Monreith their assignee. Jacob Moir being a considerable creditor to Cultreoch, he pursues Monreith for payment of his debt, on thir grounds,—That he had accepted a disposition from the heirs, and stated himself in their vice and place; and, as they would be liable geslione pro hairede, so must he; likeas, he was obliged to relieve them by his backbond; and 3tio, had intromitted with the moveables before confirmation; and so was vitious intromitter, in terms of the 20th Act 1696.
Alleged for Sir Alexander,—That the onerous cause for which he granted the bond of relief was the daughters' disposition of the estate to him, which proved wholly void and ineffectual, through the heir-male's reducing their right, and getting himself preferred; so that passive title of behaviour would not so much as reach the heirs of line, who now find their mistake that they were not alio qui successuri, as they thought, not knowing then of the heir male's right; and if gestio could not strike against them, much less can it affect Sir Alexander deriving a right from them, which is now found to be no right at all. So it is a synallagma, whereof the one branch has failed, and is either sine causa or causa data causa non sccuta. And, as their disposition to him falls to the ground, so must his correspective obligement of relief to them fall in consequence, the one being the mutual cause of the other.
Answered, 1mo,—The disposition of the heritage was not the sole onerous cause of his relieving them; but he likewise took an assignation to the moveable estate, to which the heir-male could pretend no right: so the disposition subsisting quoad that, there remained still an onerous cause for supporting the bond of relief. 2do, This bargain was a plain purchase of Cultreoch's whole succession per universitatem et aversionem; and, if he has made an incautious transaction, sibi imputet et discat postea cautius rnercari; for this emptio hecreditatis is like the buying of a jactus retis. If there be nothing in the net when drawn, you can claim nothing,—l. 2 D. de Haired. Tel Act. Vend. And the eviction arising from no deeds of the heirs of line, he must sit down with his loss.
Replied,—The disappointment arising ex casu improviso, from unforeseen accidents, no law punishes such innocent mistakes. And the assigning the moveables can never make him liable, being of a small and inconsiderable value, and which the heir-male will evict when he comes to be pursued by the creditors; seeing the executry is bound to relieve the heir quoad all moveable debts. And the truth is, the parties' principal view, and the substantial part of the transaction, was the lands. And it cannot be emptio hcereditalis; because L. 7, Dict. tit. requires that there be a hceredilas: but here there was none. And this intromission was abundantly purged by the posterior confirmation.
The Lords, by plurality, assoilyied him from this pursuit; and found him not liable. But, when they insist against the heir-male, he will recur upon the moveables for his relief pro tanto.
